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Employers Tread a Minefield
Firings for Alleged Social-Media Infractions Sometimes Backfire on Companies
Facebook gaffes that can cause trouble in the workplace aren't unique to drunken college students anymore. As more companies and their workers tap into the world of blogs, Twitter and Facebook, employers are tripping over legal potholes in social media.
Next week a National Labor Relations Board judge will consider whether a medical-transportation company illegally fired a worker after she criticized her boss on Facebook, in the federal agency's first complaint linked to social media.
In another case, workers sued a restaurant company when they were dismissed after managers accessed a private Myspace page the employees set up to chat about work.
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Ashley Payne Job seekers and employees have long been warned that risqué revelations on Facebook can jeopardize career prospects. But now companies are facing their own challenges for alleged blunders in dealing with social media.
"The intersection of social media and the office is a potential minefield,"”said Philip L. Gordon, the Denver-based chairman of the privacy and data-protection practice group at law firm Littler Mendelson PC. Even when a company prevails in such legal actions, "there are reputational risks,"”Mr. Gordon added. "The company can become a poster child for a particular type of employment claim."”
Part of the problem is that social networks are brimming over with personal information of employees and job applicants. Along with various suits that have grabbed media attention, the potential for further litigation is broad, lawyers caution. For example, a worker could file a sexual-harassment suit after a manager repeatedly tries to "friend"”her on Facebook. Or an applicant might accuse a hiring manager of reneging on a job offer after learning the candidate's religious affiliation on Twitter.
"Social media is about communicating all the no-nos"”of office life, such as political views, says Shanti Atkins, an attorney who is chief executive of ELT Inc., a San Francisco firm selling online training services in workplace-compliance areas such as social media.
Certainly, many of these types of disputes may never get far, and new laws may arise that change the landscape. Still, numerous cases have made it to court—or are on their way.
Cisco Systems Inc. has been sued twice for comments an anonymous blogger (who was at the time a Cisco attorney) made about two Texas lawyers and their patent-infringement suit against Cisco. Both suits were resolved—one in 2009 after the trial began, and the other in 2010 before the issue got to court—but the terms of the settlements weren't revealed. Cisco declined to comment.
Next week a National Labor Relations Board judge will consider whether a medical-transportation company illegally fired a worker after she criticized her boss on Facebook, in the federal agency's first complaint linked to social media.
In another case, workers sued a restaurant company when they were dismissed after managers accessed a private Myspace page the employees set up to chat about work.
Ashley Payne Ashley Payne claims she lost her job because of Facebook postings, such as this vacation photo.
"The intersection of social media and the office is a potential minefield,"”said Philip L. Gordon, the Denver-based chairman of the privacy and data-protection practice group at law firm Littler Mendelson PC. Even when a company prevails in such legal actions, "there are reputational risks,"”Mr. Gordon added. "The company can become a poster child for a particular type of employment claim."”
Part of the problem is that social networks are brimming over with personal information of employees and job applicants. Along with various suits that have grabbed media attention, the potential for further litigation is broad, lawyers caution. For example, a worker could file a sexual-harassment suit after a manager repeatedly tries to "friend"”her on Facebook. Or an applicant might accuse a hiring manager of reneging on a job offer after learning the candidate's religious affiliation on Twitter.
"Social media is about communicating all the no-nos"”of office life, such as political views, says Shanti Atkins, an attorney who is chief executive of ELT Inc., a San Francisco firm selling online training services in workplace-compliance areas such as social media.
Certainly, many of these types of disputes may never get far, and new laws may arise that change the landscape. Still, numerous cases have made it to court—or are on their way.
Cisco Systems Inc. has been sued twice for comments an anonymous blogger (who was at the time a Cisco attorney) made about two Texas lawyers and their patent-infringement suit against Cisco. Both suits were resolved—one in 2009 after the trial began, and the other in 2010 before the issue got to court—but the terms of the settlements weren't revealed. Cisco declined to comment.
In Georgia, former high school teacher Ashley Payne sued the local school district in the Superior Court of Barrow County, claiming she was essentially forced to resign over Facebook photos that showed her drinking alcohol during a European vacation, said her attorney, Richard J. Storrs.
In a case settled in 2009, two restaurant workers sued their employer in federal court in New Jersey after they were fired for violating the company's core values. According to court documents, their supervisors gained access to postings on a password-protected Myspace page meant for employees—but not managers. (Myspace is a unit of News Corp., which also owns The Wall Street Journal.)
The jury found that the employer, Hillstone Restaurant Group,—had violated the federal Stored Communications Act and the equivalent New Jersey law, and awarded the employees $3,403 in back pay and $13,600 in punitive damages.
The restaurant company appealed before the two parties reached an undisclosed settlement, said Fred J. Pisani, the workers' attorney. Hillstone said, "We're pleased that the matter was resolved and the plaintiffs have gone their separate way."”
In next week's Facebook case, the employer, American Medical Response of Connecticut Inc., which operates ambulances and medical-transportation service, disagrees with the NLRB over whether the employee's postings were "concerted activity" or just online bad-mouthing, which is against the company's policy. Concerted activity refers to communication among employees seeking to improve work conditions, an activity federal law protects.
In a statement, American Medical Response denied allegations that it maintained and enforced an overly broad blogging and Internet policy with unlawful provisions, and said the employee in question was discharged "based on multiple, serious complaints about her behavior."”
Experts say an employer's’best defense against legal action is to establish a social-media policy that outlines what is and isn't appropriate in social media, and then to train employees about the policy.
Brian D. Hall, an employment-law partner at Porter Wright Morris & Arthur LLP in Columbus, Ohio, estimates that fewer than half of U.S. companies have a social-media policy.
Mr. Hall and others say the amount of legal action resulting from employer missteps in social media is likely to rise at least until more case law is established.
"The NLRB case won't be the last word" on employer matters in social media, said Jeffrey S. Klein, who heads the employment-litigation practice at Weil, Gotshal & Manges LLP in New York. "For people who are ignoring this and don't think it's a prevalent issue in the workplace, they need to stop being naïve."
